United States Government Censorship of Fuck Nazis Virtual Lapel Pin

My Right to Say "Fuck Nazis"

01 Sep 2017

When I woke up in the morning of September 1st, 2017 I immediately began my
morning ritual of lazily glancing through emails. On this morning, one
particular email stood out — the Fuck Nazis Virtual
Lapel Pin had been censored by the United States Government.

Let’s jump back a minute for some context.

On August 19th, 2017 I began a new project, the Fuck Nazis Virtual Lapel
Pin. The project’s goal was to raise funds to resist the
recent uptick in Nazism and other forms of violent racist extremism in America.
The Fuck Nazis Virtual Lapel Pin is a unique fund-raiser because donors
quid-pro-quo receive a digital asset in return for their contribution, I hoped
this would harness the excitement around the emerging “Initial Coin
Offering”
phenomenon.

On September 1st, 2017 at 2:40 AM Pacific Daylight Time Neustar initiated a
transfer of my domain. One hour and 29 minutes later Neustar sent me an email
explaining the transfer.

I’ve sent Neustar an email requesting that they reinstate my registration, but I’ve not yet heard back from them.

Neustar is a contractor hired by the U.S. Governemnt to operate the .us TLD.
Because they are managing a federally owned property, I beleive they are
obligated to follow the First Amendment with respect to registered names.
Otherwise, I do not think the FCC may legally continue to use them as a
contractor. To quote
ICANNWatch:

[W]hile a private entity like Neustar is under no intrinsic obligation to
respect the First Amendment, the fact that they did this under government
consultation, and pursuant to a government-granted charter to operate the
country code registry for the United States, raises serious issues of
Constitutionality.

It’s not a strange expectation to hold that contractors of the United States
Government must abide by constitutional provisions. For instance, private
prisons are not at liberty to exact cruel and unusual punishments. Kimberly N.
Brown delivers a thorough treatment of this in “We the People,” Constitutional
Accountability, and Outsourcing
Government.
While there are controversial cases, it is generally clear that public actors
must hold accountable private actors that they delegate their constitutional
powers to.

Notwithstanding the concern over whether it is the FCC or Neustar who is
legally culpable, we can safely assume that the FCC is bound to ensure that
Neustar respects constitutional rights in fulfilling their duties as a
government contractor, and therefore examine Neustar as a government actor.

Neustar’s management policy document can be found
here.
The relevant sections are B-78 and B-98. Neustar claims that they will review
domains which contain the “7 Words” and possibly delete them (presumably,
ensuring that they are not violating the registrant’s First Amendment rights).
Their claim is that the domain fucknazis.us violate’s
the “7 Words” policy enforced by Neustar. (This is a reference to George
Carlin’s infamous Seven Dirty
Words skit) In this case, the
presence of “fuck” in the domain is what alerted Neustar to need to review my
domain. However, in failing to waive fucknazis.us I
believe they violated my First Amendment rights.

In Cohen v. California, a man was arrested for disturbing the peace for wearing
a “Fuck the Draft” shirt. In this case, the speech was found to be protected by
the First Amendment for multiple reasons. Most relevantly, the court refused to recognize
the speech as “Fighting Words”, or speech intended to elicit violence. This is because
Cohen’s voiced dissent of the draft was not intended to elicit any violence, it was simply
to voice an opinion. Similarly, the material published on the Fuck Nazis site was
clearly in support of non-violent action, e.g.

As a first measure, and irrespective of what is most effective, I want to use
funds raised ensure that it is possible to protest these Nazis as safely as
possible. No one should permit the Nazis to intimidate them out of their
freedom to speak against them.

along with a list of other non-violent actions I would use the funds raised to
support. The court went further to find that

Finally, and in the same vein, we cannot indulge the facile assumption that
one can forbid particular words without also running a substantial risk of
suppressing ideas in the process. Indeed, governments might soon seize upon
the censorship of particular words as a convenient guise for banning the
expression of unpopular views. We have been able, as noted above, to discern
little social benefit that might result from running the risk of opening the
door to such grave results.

This makes it clear that the censorship of Fuck Nazis Virtual Lapel Pins by revocation
of the domain fucknazis.us is unconstitutional.

Miller v. California is a case of a very different nature involving the
distribution of pornographic content, but it established a simple three-prong
test for unprotected explicit speech. If you pass all three tests, then the work
is considered obscene.

(a) whether “the average person, applying contemporary community standards”
would find that the work, taken as a whole, appeals to the prurient interest.

(b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state
law.

Fail: Fuck Nazis is clearly non-sexual.

(c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value. If a state obscenity law is thus
limited, First Amendment values are adequately protected by ultimate
independent appellate review of constitutional claims when necessary.

Fail: Fuck Nazis is a political and artistic project, and is presented cogently.

Having clearly failed all three tests, Fuck Nazis is non-obscene protected
speech by all measures.

Critically, both Cohen v. California and Miller v. California are both rulings
with regards to the state’s ability to restrict speech. Only FCC v. Pacifica
Foundation deals with the federal government’s ability to restrict “obscene”
speech, which established the “7 Dirty Words”.

The critically relevant part of FCC v. Pacifica Foundation is that the measures
enforce by the FCC (to only broadcast during hours children are unlikely to be
awake) did not prevent adults from accessing and finding the content. In this
case, Neustar’s actions against Fuck Nazis does prevent adults from accessing
the content unadulterated (whereas the time restriction enforced by the FCC
permitted identical material to be broadcast at a reasonably later time).
Furthermore, based on Neustar’s enforced policies I would be able to register
the domain “nazis.us” (if it were available — it’s been held since 2014)
and use the subdomain “fuck” giving me the “fuck.nazis.us” domain. This makes
the case that there is zero benefit from the measure taken by Neustar, at the
expense of the significant burden of forcing me to change a domain that I have
already linked to in numerous communications. Of greater concern is the general
freedom of speech risk established by this enforcement mechanism.

Based on the above, Neustar, acting as an agent of the United States
government, plainly violated my First Amendment rights causing damages to my project
that are difficult to quantify given that the fund-raiser I was hosting on the site is
ongoing.